Audios Discussing Equity – TS 6+7+8 2011

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Role of maxims Maxims of equity are not a rigid set of rules, but are, rather, general principles which can be deviated from in specific cases.^[2] Snell’s Equity, an English treatise, takes the view that the “Maxims do not cover the whole ground, and moreover they overlap, one maxim contains by implication what belongs to another. Indeed it would not be difficult to reduce all under two: ‘Equity will not suffer a wrong to be without a remedy‘ and ‘Equity acts on the person‘”.^[3] List of Maxims

• 1 Equity sees that as done what ought to be done
• 2 Equity will not suffer a wrong to be without a remedy
• 3 Equity delights in equality
• 4 One who seeks equity must do equity
• 5 Equity aids the vigilant, not those who slumber on their rights
• 6 Equity imputes an intent to fulfill an obligation
• 7 Equity acts in personam or persons
• 8 Equity abhors a forfeiture
• 9 Equity does not require an idle gesture
• 10 He who comes into equity must come with clean hands
• 11 Equity delights to do justice and not by halves
• 12 Equity will take jurisdiction to avoid a multiplicity of suits
• 13 Equity follows the law
• 14 Equity will not aid a volunteer
• 15 Where equities are equal, the law will prevail
• 16 Between equal equities the first in order of time shall prevail
• 17 Equity will not complete an imperfect gift
• 18 Equity will not allow a statute to be used as a cloak for fraud
• 19 Equity will not allow a trust to fail for want of a trustee
• 20 Equity regards the beneficiary as the true owner

List of Maxims:

1. Equity sees that as done what ought to be done

This maxim means that when individuals are required, by their agreements or by law, to perform some act of legal significance, equity will regard that act as having been done as it ought to have been done, even before it has actually happened. This makes possible the legal phenomenon of equitable conversion. Sometimes this is phrased as “equity regards as done what should have been done”. The consequences of this maxim, and of equitable conversion, are significant in their bearing on the risk of loss in transactions. When parties enter a contract for a sale of real property, the buyer is deemed to have obtained an equitable right that becomes a legal right only after the deal is completed. Due to his equitable interest in the outcome of the transaction, the buyer who suffers a breach may be entitled to the equitable remedy of specific performance (although not always, see below). If he is successful in seeking a remedy at law, he is entitled to the value of the property at the time of breach regardless of whether it has appreciated or depreciated. The fact that the buyer may be forced to suffer a depreciation in the value of the property means that he bears the risk of loss if, for example, the improvements on the property he bought burn down while he is still in escrow. Problems may sometimes arise because, through some lapse or omission, insurance coverage is not in force at the time a claim is made. If the policyholder has clearly been at fault in this connection, because, for example, he has not paid premiums when he should have, then it will normally be quite reasonable for an insurer to decline to meet the claim. However, it gets more difficult if the policyholder is no more at fault than the insurer. The fair solution in the circumstances may be arrived at by applying the principle that equity regards that as done that ought to be done. In other words, what would the position have been if what should have been done had been done? Thus, in one case, premiums on a life insurance policy were overdue. The insurer’s letter to the policyholder warning him of this fact was never received by the policyholder, who died shortly after the policy consequently lapsed. It was clear that if the notice had been received by the policyholder, he or his wife would have taken steps to ensure the policy continued in force, because the policyholder was terminally ill at the time and the coverage provided by the policy was something his wife was plainly going to require in the foreseeable future. Since the policyholder would have been fully entitled to pay the outstanding premium at that stage, regardless of his physical condition, the insurer (with some persuasion from the Bureau) agreed that the matter should be dealt with as if the policyholder had done so. In other words, his widow was entitled to the sum assured less the outstanding premium. In other similar cases, however, it has not been possible to follow the same principle because there has not been sufficiently clear evidence that the policy would have been renewed. Another illustration of the application of this equitable principle was in connection with motor vehicle insurance. A policyholder was provided with coverage on the basis that she was entitled to a “no claims” discount from her previous insurer. Confirmation to this effect from the previous insurer was required. When that was not forthcoming, her coverage was cancelled by the brokers who had issued the initial coverage note. This was done without reference to the insurer concerned whose normal practice in such circumstances would have been to maintain coverage and to require payment of the full premium until proof of the no claims discount was forthcoming. Such proof was eventually obtained by the policyholder, but only after she had been involved in an accident after the cancellation by the brokers of the policy. Here again, the fair outcome was to look at what would have happened if the insurer’s normal practice had been followed. In such circumstances, the policyholder would plainly have still had a policy at the time of the accident. The insurer itself had not acted incorrectly at any stage. However, in the circumstances, it was equitable for it to meet the claim.

2. Equity will not suffer a wrong to be without a remedy

When seeking an equitable relief, the one that has been wronged has the stronger hand. The stronger hand is the one that has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of specific performance or an injunction (injunctive relief). These are superior remedies to those administered at common law such as damages. The Latin legal maxim is ubi jus ibi remedium (“where there is a right, there must be a remedy”), sometimes cited as ubi jus ibi remediam. The maxim is necessarily subordinate to positive principles and cannot be applied either to subvert established rules of law or to give the courts a jurisdiction hitherto unknown, and it is only in a general not in a literal sense that the maxim has force. Case law dealing with principle of this maxim at law include Ashby v White^[4] and Bivens v. Six Unknown Named Agents.^[5] The application of this principle at law was key in the decision of Marbury v. Madison,^[6] wherein it was necessary to establish that Marbury had a right to his commission in the first place in order for Chief Justice Marshall to make his more wide-ranging decision.

3. Equity delights in equality

Where two persons have an equal right, the property will be divided equally. Thus equity will presume joint owners to be tenants in common unless the parties have expressly agreed otherwise. Equity also favours partition, if requested, of jointly held property.

4. One who seeks equity must do equity

To receive equitable relief, the petitioning party must be willing to complete all of its own obligations as well. The applicant to a court of equity is just as much subject to the power of that court as the defendant. This maxim may also overlap with the clean hands maxim (see below).

5. Equity aids the vigilant, not those who slumber on their rights

Vigilantibus non dormientibus aequitas subvenit. A person who has been wronged must act relatively swiftly to preserve their rights. Otherwise, they are guilty of laches, an untoward delay in litigation with the presumed intent of denying claims. This differs from a statute of limitations, in that a delay is particularized to individual situations, rather than a general prescribed legal amount of time. In addition, even where a limitation period has not yet run, laches may still occur. The equitable rule of laches and acquiescence was first introduced in Chief Young Dede v. African Association Ltd^[7] Alternatives:

• Delay defeats equity
• Equity aids the vigilant, not those who sleep on their rights

6. Equity imputes an intent to fulfill an obligation

Generally speaking, near performance of a general obligation will be treated as sufficient unless the law requires perfect performance, such as in the exercise of an option. Text writers give an example of a debtor leaving a legacy to his creditor equal to or greater than his obligation. Equity regards such a gift as performance of the obligation so the creditor cannot claim both the legacy and payment of the debt.

7. Equity acts in personam or persons

In England, there was a distinction drawn between the jurisdiction of the law courts and that of the chancery court. Courts of law had jurisdiction over property as well as persons and their coercive power arose out of their ability to adjust ownership rights. Courts of equity had power over persons. Their coercive power arose from the ability, on authority of the crown, to hold a violator in contempt, and take away his or her freedom (or money) until he or she purged himself or herself of his or her contumacious (yes it is a word) behavior. This distinction helped preserve a separation of powers between the two courts. Nevertheless, courts of equity also developed a doctrine that an applicant must assert a “property interest”. This was a limitation on their own power to issue relief. This does not mean that the courts of equity had taken jurisdiction over property. Rather, it means that they came to require that the applicant assert a right of some significant substance as opposed to a claim for relief based on an injury to mere emotional or dignitary interests.

8. Equity abhors a forfeiture

Today, a mortgagor refers to his interest in the property as his “equity”. The origin of the concept, however, was actually a mirror-image of the current practice. At common law, a mortgage was a conveyance of the property, with a condition subsequent, that if the grantor paid the secured indebtedness to the grantee on or before a date certain (the “law” day) then the conveyance would be void, otherwise to remain in full force and effect. As was inevitable, debtors would be unable to pay on the law day, and if they tendered the debt after the time had passed, the creditor owed no duty to give the land back. So then the debtor would run to the court of equity, plead that there was an unconscionable forfeiture about to occur, and beg the court to grant an equitable decree requiring the lender to surrender the property upon payment of the secured debt with interest to date. And the equity courts granted these petitions quite regularly and often without regard for the amount of time that had lapsed since the law day had passed. The lender could interpose a defense of laches, saying that so much time had gone by (and so much improvement and betterment had taken place) that it would be inequitable to require undoing the finality of the mortgage conveyance. Other defenses, including equitable estoppel, were used to bar redemption as well. This unsettling system had a negative impact on the willingness of lenders to accept real estate as collateral security for loans. Since a lender could not re-sell the property until it had been in uncontested possession for years, or unless it could show changed circumstances, the value of real estate collateral was significantly impaired. Impaired, that is, until lawyers concocted the bill of foreclosure, whereby a mortgagee could request a decree that unless the mortgagor paid the debt by a date certain (and after the law date set in the mortgage), the mortgagor would thereafter be barred and foreclosed of all right, title and equity of redemption in and to the mortgaged premises. To complete the circle, one needs to understand that when a mortgagor fails to pay an installment when due, and the mortgagee accelerates the mortgage, requiring immediate repayment of the entire mortgage indebtedness, the mortgagor does not have a right to pay the past-due installment(s) and have the mortgage reinstated. In Graf v. Hope Building Corp.,^[8] the New York Court of Appeals observed that in such a case, there was no forfeiture, only the operation of a clause fair on its face, to which the mortgagor had freely assented. In the latter 20th Century, New York’s lower courts eroded the Graf doctrine to such a degree that it appears that it is no longer the law, and that a court of conscience has the power to mandate that a default be excused if it is equitable to do so. Of course, now that the pendulum is swinging in the opposite direction, we can expect courts to explain where the limits on the newly expanded equity of redemption lie…and it is probably not a coincidence that the cases that have eroded Graf v. Hope Building Corp. have been accompanied by the rise of arbitration as a means for enforcing mortgages.^[9]

8. Equity does not require an idle gesture

Also: Equity will not compel a court to do a vain and useless thing. It would be an idle gesture for the court to grant reformation of a contract and then to deny to the prevailing party an opportunity to perform it as modified.

9. He who comes into equity must come with clean hands

It is often stated that one who comes into equity must come with clean hands (or alternatively, equity will not permit a party to profit by his own wrong). In other words, if you ask for help about the actions of someone else but have acted wrongly, then you do not have clean hands and you may not receive the help you seek. For example, if you desire your tenant to vacate, you must have not violated the tenant’s rights. However, the requirement of clean hands does not mean that a “bad person” cannot obtain the aid of equity. “Equity does not demand that its suitors shall have led blameless lives.”^[10] The defense of unclean hands only applies if there is a nexus between the applicant’s wrongful act and the rights he wishes to enforce. For instance, in Riggs v. Palmer,^[11] a man who had killed his grandfather to receive his inheritance more quickly (and for fear that his grandfather may change his will) lost all right to the inheritance. In D & C Builders Ltd v Rees,^[12] a small building firm did some work on the house of a couple named Rees. The bill came to £732, of which the Rees had already paid £250. When the builders asked for the balance of £482, the Rees announced that the work was defective, and they were only prepared to pay £300. As the builders were in serious financial difficulties (as the Rees knew), they reluctantly accepted the £300 “in completion of the account”. The decision to accept the money would not normally be binding in contract law, and afterwards the builders sued the Rees for the outstanding amount. The Rees claimed that the court should apply the doctrine of equitable estoppel, which can make promises binding when they would normally not be. However, Lord Denning refused to apply the doctrine, on the grounds that the Rees had taken unfair advantage of the builders’ financial difficulties, and therefore had not come “with clean hands”.

10. Equity delights to do justice and not by halves

When a court of equity is presented with a good claim to equitable relief, and it is clear that the plaintiff also sustained monetary damages, the court of equity has jurisdiction to render legal relief, e.g., monetary damages. Hence equity does not stop at granting equitable relief, but goes on to render a full and complete collection of remedies.

11. Equity will take jurisdiction to avoid a multiplicity of suits

Thus, “where a court of equity has all the parties before it, it will adjudicate upon all of the rights of the parties connected with the subject matter of the action, so as to avoid a multiplicity of suits.”^[13] This is the basis for the procedures of interpleader, class action, and the more rarely used Bill of Peace.

12. Equity follows the law

This maxim, also expressed as Aequitas sequitur legem means more fully that “equity will not allow a remedy that is contrary to law. The Court of Chancery never claimed to override the courts of common law. Story states “where a rule, either of the common or the statute law is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it.”^[14] According to Edmund Henry Turner Snell, “It is only when there is some important circumstance disregarded by the common law rules that equity interferes.”^[15] Cardozo wrote in his dissent in Graf v. Hope Building Corporation, 254 N.Y 1 at 9 (1930), “Equity works as a supplement for law and does not supersede the prevailing law.” Maitland says, “We ought not to think of common law and equity as of two rival systems.”^[16] “Equity had come not to destroy the law, but to fulfil it. Every jot and every title of law was to be obeyed, but when all this had been done yet something might be needful, something that equity would require.”^{[17][full citation needed]} The goal of law and equity was the same but due to historical reason they chose a different path. Equity respected every word of law and every right at law but where the law was defective, in those cases, equity provides equitable right and remedies.

13. Equity will not aid a volunteer

Equity cannot be used to take back a benefit that was voluntarily but mistakenly conferred without consultation of the receiver. This maxim protects the doctrine of choice. This maxim is very important in restitution. Restitution developed as a series of writs called special assumpsit, which were later additions in the courts of law, and were more flexible tools of recovery, based on equity. Restitution could provide means of recovery when people bestowed benefits on one another (such as giving money or providing services) according to contracts that would have been legally unenforceable. However, pursuant to the equitable maxim, restitution does not allow a volunteer or “officious intermeddler” to recover. A volunteer is not merely someone who acts selflessly. In the legal (and equitable) context, it refers to someone who provides a benefit regardless of whether the recipient wants it. For example, when someone mistakenly builds an improvement on a home, neither equity nor restitution will allow the improver to recover from the homeowner. An exception to this maxim can be seen in cases where the doctrine of estoppel applies.

14. Where equities are equal, the law will prevail

Equity will provide no specific remedies where the parties are equal, or where neither has been wronged. The significance of this maxim is that applicants to the chancellors often did so because of the formal pleading of the law courts, and the lack of flexibility they offered to litigants. Law courts and legislature, as lawmakers, through the limits of the substantive law they had created, thus inculcated a certain status quo that affected private conduct, and private ordering of disputes. Equity, in theory, had the power to alter that status quo, ignoring the limits of legal relief, or legal defenses. But courts of equity were hesitant to do so. This maxim reflects the hesitancy to upset the legal status quo. If in such a case, the law created no cause of action, equity would provide no relief; if the law did provide relief, then the applicant would be obligated to bring a legal, rather than equitable action. This maxim overlaps with the previously mentioned “equity follows the law.”

15. Between equal equities the first in order of time shall prevail

This maxim operates where there are two or more competing equitable interests; when two equities are equal the original interest (i.e., the first in time) will succeed.

17. Equity will not complete an imperfect gift

If a donor has made an imperfect gift, i.e. lacking the formalities required at common law, equity will not assist the intended donee. This maxim is a subset of equity will not assist a volunteer . Note the exception in Strong v Bird (1874) LR 18 Eq 315. If the donor appoints the intended donee as executor of his/her will, and the donor subsequently dies, equity will perfect the imperfect gift.

18. Equity will not allow a statute to be used as a cloak for fraud

Equity prevents a party from relying upon an absence of a statutory formality if to do so would be unconscionable and unfair. This can occur in secret trusts and also constructive trusts and so on.

19. Equity will not allow a trust to fail for want of a trustee

If there is no trustee, whoever has legal title to the trust property will be considered the trustee. Otherwise, a court may appoint a trustee. In Ireland, the trustee may be any administrator of a charity to which the trust is related.

20. Equity regards the beneficiary as the true owner

See also

• English trusts law
• Brocard (law)
• Legal maxim
• List of legal Latin terms

maxim

(redirected from “Equity aids the vigilant, not those who slumber on their rights.”)
Also found in: Dictionary/thesaurus, Medical, Encyclopedia, Wikipedia.

(Equity) Maxims

A broad statement of principle, the truth and reasonableness of which are self-evident. A rule of Equity, the system of justice that complements the Common Law. Maxims were originally quoted in Latin, and many of the Latin phrases continue to be familiar to lawyers in the early 2000s. The maxims were not written down in an organized code or enacted by legislatures, but they have been handed down through generations

of judges. As a result, the wording of a maxim may vary from case to case. For example, it is a general rule that equity does not aid a party at fault. 

This maxim has been variously expressed:

No one is entitled to the aid of a court of equity when that aid has become necessary through

his or her own fault. Equity does not relieve a person of the consequences of his or her own carelessness. A court of equity will not assist a person in extricating himself or herself from the circumstances that he or she has created. Equity will not grant relief from a self-created hardship.

The Foundations of Equity

Two maxims form the primary foundations of equity: Equity will not suffer an injustice and equity acts in personam. The first of the se explains the whole purpose of equity, and the second highlights the personal nature of equity. Equity looks at the circumstances of the individuals in each case and fashions a remedy that is directed at the person of the defendant who must act accordingly to provide the plaintiff with the specified relief. Unless a statute expands the powers of an equity court, it can make decrees that concern property only indirectly, phrasing them as decrees against persons. It is said that these are the oldest two maxims of equity. All others are consistent with them.

“He who seeks equity must do equity.”

This maxim is not a moral persuasion but an enforceable Rule of Law. It does not require every plaintiff to have an unblemished background in order to prevail, but the court will refuse to assist anyone whose Cause of Action is founded on his or her own misconduct toward the other party. If, for example, a wealthy woman tricks her intended spouse into signing a prenuptial agreement giving him a token $500 should they Divorce and after marriage she engages in a consistent pattern of conduct leading to a divorce, a court could refuse to enforce the agreement. This maxim reflects one aspect of the principle known as the clean hands doctrine.

“He who comes into equity must come with clean hands.”

This maxim bars relief for anyone guilty of improper conduct in the matter at hand. It operates to prevent any affirmative recovery for the person with “unclean hands,” no matter how unfairly the person’s adversary has treated him or her. The maxim is the basis of the clean hands doctrine. Its purpose is to protect the integrity of the court. It does not disapprove only of illegal acts but will deny relief for bad conduct that, as a matter of public policy, ought to be discouraged. A court will ask whether the bad conduct was intentional. This rule is not meant to punish carelessness or a mistake. It is possible that the wrongful conduct is not an act but a failure to act. For example, someone who hires an agent to represent him or her and then sits silently while the agent misleads another party in negotiations is as much responsible for the false statements as if he himself or she herself had made them. The bad conduct that is condemned by the clean hands doctrine must be a part of the transaction that is the subject of the lawsuit. It is not necessary that it actually have hurt the other party. For example, equity will not relieve a plaintiff who was also trying to evade taxes or defraud creditors with a business deal, even if that person was cheated by the other party in the transaction. Equity will always decline relief in cases in which both parties have schemed to circumvent the law. In one very old case, a robber filed a bill in equity to force his partner to account for a sum of money. When the real nature of the claim was discovered, the bill was dismissed with costs, and the lawyers were held in Contempt of court for bringing such an action. This famous case has come to be called The Highwayman (Everet v. Williams, Ex. 1725, 9 L.Q. Rev. 197), and judges have been saying ever since that they will not sit to take an account between two robbers.

“Equity aids the vigilant, not those who slumber on their rights.”

This principle recognizes that an adversary can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date that the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice. The law encourages a speedy resolution for every dispute. It does not favor the cause of someone who suddenly wakes up to enforce his or her rights long after discovering that they exist. A long unreasonable delay like this is called Laches, and it is a defense to various forms of equitable relief.

“Equity follows the law.”

Equity does not replace or violate the law, but it backs it up and supplements it. Equity follows appropriate rules of law, such as the rules of  evidence and pretrial discovery.

“Equity acts specifically.”

This maxim means that a party who sues in equity can recover the precise thing that he or she seeks rather than monetary damages as a substitute for it. This maxim is the remedy of Specific Performance.

“Equity delights to do justice and not by halves.”

It is the purpose of equity to find a complete answer to the issues that are raised in a lawsuit. It will bring in all the necessary parties, balance their rights, and give a decree that should protect all of them against further litigation on the subject. Whenever necessary, the court will retain jurisdiction in order to supervise enforcement of relief. For example, a lawsuit remains alive as long as an Injunction is in force. Either party may come back into court and apply for reconsideration of the order if circumstances change. Courts also retain jurisdiction when Child Support payments are ordered. The amount can be changed if the child’s needs require an increase or if the supporting parent becomes ill, unemployed, or retired.

“Equity will not suffer a wrong to be without a remedy.”

It is the traditional purpose of equity to find solutions in lawsuits. Where money will not pay for the injury, equity has the authority to find another remedy. This maxim is a restatement of the broad legal principle: Ubi jus, ibi remedium, “Where there is a right, there is a remedy.” The maxim is applied in equity in an orderly way. It does not mean that anything goes. It calls forth recognized remedies for well-established wrongs, wrongs that are invasions of property rights or personal or Civil Rights and that the law considers actionable. A court will not listen to complaints about every petty annoyance or immoral act.

“Equity regards substance rather than form.”

Equity will not permit justice to be withheld just because of a technicality. Formalities that frustrate justice will be disregarded and a better approach found for each case. Equity enforces the spirit rather than the letter of the law alone.

“Equity is equality.”

This maxim means that equity will not play favorites. For example, a receiver who has been appointed to collect the assets of a business in financial trouble must use the income to pay every creditor an equal share of what is owed to him or her. If a Pension fund loses a large amount of money through poor investment, then everyone who is entitled to benefits must suffer a fair share of the loss. Three adult children of a woman who is killed in an auto accident should share equally in any money that is recovered in a Wrongful Death action if the children are the woman’s only surviving close relatives. A judge will depart from this principle only under compelling circumstances, but the rule applies only to parties who are on an equal footing. If, for example, the woman in an auto accident died leaving three young children, then the money that is recovered might be distributed in proportion to each child’s age. A younger child will have lost his or her mother for more years than an older brother or sister. Also, a receiver would have to prefer a secured creditor over those creditors who had no enforceable interest in a particular asset of the company. Unless there is proof that one person in a group is in a special position, the law will assume that each should share equally in proportion to his or her contribution or loss.

“Between equal equities the law will prevail.”

When two parties want the same thing and the court cannot in good conscience say that one has a better right to the item than the other, the court will leave it where it is. For example, a company that had been collecting sales tax and turning it over to the state government found that it had over taxed and overpaid by 2 percent. It applied for a refund, but the state refused. The court upheld the state on the ground that the money really belonged to the customers of the company. Since the company had no better right to the money than the state, the court left the money with the state.

“Between equal equities the first in order of time shall prevail.”

When two parties each have a right to possess something, then the one who acquired an interest first should prevail in equity. For example, a man advertises a small boat for sale in the classified section of the newspaper. The first person to see the ad offers him $20 less than the asking price, but the man accepts it. That person says he or she will pick up the boat and pay for it on Saturday. Meanwhile another person comes by, offers the man more money, and the man takes it. Who owns the boat? Contract law and equity agree that the first buyer gets the boat, and the second buyer gets his or her money back.

“Equity abhors a forfeiture.”

A Forfeiture is a total loss of a right or a thing because of the failure to do something as required. A total loss is usually a rather stiff penalty. Unless a penalty is reasonable in relation to the seriousness of the fault, it is too harsh. In fairness and good conscience, a court of equity will refuse to permit an unreasonable forfeiture. This maxim has particularly strong application to the ownership of land, an interest for which the law shows great respect. Title to land should never be lost for a trivial reason— for example, a delay of only a few days in closing a deal to purchase a house. Generally equity will not interfere with a forfeiture that is required by statute, such as the loss of an airplane illegally used to smuggle drugs into the country. Unless the statute violates the due process requirements of the Constitution, the penalty should be enforced. “Equity abhors a forfeiture” does not overcome the maxim that “equity follows the law.” Neither will equity disregard a contract provision that was fairly bargained. Generally it is assumed that a party who does most of what is required in a business contract and does it in a reasonable way, should not be penalized for the violation of a minor technicality. A contractor who completes work on a bridge one day late, for example, should not be treated as though he or she had breached the entire contract. If the parties, however, include in their agreement an express provision, such as time is of the essence, this means that both parties understand that performance on time is essential. The party who fails to perform on time would forfeit all rights under the contract.

Further readings

Hoffer, Peter Charles. 1990. The Law’s Conscience: Equitable Constitutionalism  in America. Chapel Hill: Univ. of North Carolina Press. Kraut, Jayson, et al. 1983. American Jurisprudence. Rochester, N.Y.: Lawyers  Cooperative.

Cross-references

Equity; Forfeiture; Laches.

pic.twitter.com/1rnyJy2tyk

— South King Fire (@Southkingfire) December 30, 2019

Cops say 85-year-old killed her roommate over eviction. Firefighters battled a fire at the same house in Federal Way, Washington, where an 85-year-old woman allegedly shot her two roommates and killed one because of fear of being evicted, police say. South King County firefighters arrived to a house fire in the 2000 block of SW 306th Lane on Dec. 30, according to a post on South King Fire’s Twitter account. Police also confirmed that it’s the same address of the shooting that happened two weeks ago, Q13 Fox reported. Beverly Jenne, 85, is charged with first-degree murder and first-degree assault for killing Janet Oyuga and shooting Oyuga’s sister on Dec. 19. According to charging papers, Jenne lived in the house for 40 years, but then it went into foreclosure and was purchased at an auction. Oyuga and her sister then moved in and allowed Jenne to live there. Police said that Jenne left a note saying she had to kill Oyuga because “Janet is not a very nice person,” the Seattle Times reported. “I think she was getting ready to evict me and I’m 85 and no place to go,” Jenne wrote. Crews made their initial entry but due to the amount of damage they are unable to effectively search the entire house. King County Fire Investigators are now in charge of the investigation.

Officers found Oyuga and her sister with gunshot wounds and Jenne with an electrical cord wrapped around her neck, Federal Way police said. Jenne is in custody with her bail set at $1 million and expected to be arraigned on Jan. 6. The cause of the fire hasn’t been released according to the Seattle Times.

Homeland Security wants all travelers, including American citizens, to be photographed entering or leaving the U.S.

By DAVID KOENIG AP Airlines Writer (12-3-19) Federal officials are considering requiring all travelers — including American citizens — be photographed as they enter or leave the country as part of an identification system using facial-recognition technology. The Department of Homeland Security says it expects to publish a proposed rule next July. Officials did not respond to requests for more details. Critics are already raising objections. Sen. Edward Markey, D-Mass., said Tuesday he will introduce legislation to block the plan and prohibit U.S. citizens from being forced to provide facial-recognition information. He said a recent data breach at Customs and Border Protection shows that Homeland Security can’t be trusted with the information. Facial recognition is being tested by several airlines at a number of U.S. airports. American citizens are allowed to opt out of being photographed, although a 2017 audit by a federal watchdog agency found that few U.S. travelers exercised that right — barely more than one per flight. Federal law requires Homeland Security to put into place a system to use biometrics to confirm the identity of international travelers. Government officials have made no secret of their desire to expand the use of biometrics, which they say could identify potential terrorists and prevent fraudulent use of travel documents. Homeland Security announced the possibility of expanding biometrics to U.S. citizens in a recent, brief filing. A spokesman for U.S. Customs and Border Protection, part of Homeland Security, said there would be a chance for the public to comment on any change in regulations. In a November 2018 report, Homeland Security said facial recognition is the best biometric approach at borders because it can be done quickly and “with a high degree of accuracy.” The agency said privacy risks “are mostly mitigated.” Photos used to match Americans to their identities are deleted within 12 hours, according to the report. Jay Stanley, a policy analyst for the American Civil Liberties Union, said the government has told the public and Congress repeatedly that American citizens would be exempt from mandatory biometric screening. “This new notice suggests that the government is reneging on what was already an insufficient promise,” Stanley said in a statement. “Travelers, including U.S. citizens, should not have to submit to invasive biometric scans simply as a condition of exercising their constitutional right to travel.”

Olympia, WA (11-4-19) — TESC has seldom been a venue where 1st Amendment values prevail of late. After the Brett Weinstein debacle, its reputation as a Washington State sponsored College of Political Indoctrination became notorious. Today, its total number of applications for admission to its Freshman class has collapsed, numbering under 300. Few are rejected given parents are loathe to pay for an inferior education at a once overrated liberal arts college turned political indoctrination camp. The school now depends on foreign student admissions to bulk up its budget in the face of increasing legislative ennui toward funding it. It has been suggested it could be put to better use as a homeless shelter.

Tripod and video gear in hand, arrival at TESC’s Purce lecture hall (adjacent to Red Square) began in the finest Gonzo journalism tradition. It’s a large venue, but a coed guided us to the right room. As the tripod came into view, questions and alarm began to rain down like hailstones. Thinly veiled threats and intimidation began to surface based on fictitious flimsy pretexts such as claims Debbie Bookchin’s copyrights extinguished 1st Amendment rights to record/document a public event at a public State college campus. The ignorance became so thick, it impaired reason and movement. Guilt tripping and accusatory verbal abuse by even more ignorant onlookers immediately followed.

Debbie Bookin threatened to refuse to go forward with her presentation at all after members of the Black Cottonwood Collective (an anarchist oriented TESC student group) failed to persuade this journalist he was violating the law. Clearly, this had to be their 1st rodeo. After some further consternation and tense negotiating while the audience was being told the presentation was delayed due to ‘technical difficulties’ the show went on. The 2 BCC spokespersons (a man and a young woman) agreed to provide their contact info (2 e-mail addresses that bounced) in return for this journalist’s contact info and Debbie answering a couple of his questions post presentation. She graciously cooperated that much as can be heard toward the end of the audio link covering what was more an exercise in polemics and political indoctrination than insight into the daily lives of the Kurds. Much of it was firmly wrapped in militant feminist rhetoric brimming with the old trope of men being patriarchal pigs and oppressors of women. Most of the Kurdish graves pictured in the presentation appeared to be men’s (Peshmerga).
Admittedly, the differences between American and Kurdish culture may be substantial–but still!

There were a few full frames of Kurdish faces in Debbie’s presentation, but very few. Most were of soil conditions, buildings, distant group shots, plants, and primitive schoolrooms. Perhaps more riveting was a photo of live grenades lining the shelves of a Kurdish family’s home. The Kurds exist in a no-man’s land where nobody, not even women journalists, is safe. Everyone, including the women must, of necessity, have lethal weapons (military grade) close at hand. Debbie often referred to ISIS sleeper cells the Kurds were intensely seeking in their midst. If the Kurds have no friends, ISIS members have less!

Despite promises of delivery of a copy of the presentation video sans the Kurdish faces, it’s unlikely to be kept. At this point, the credibility of the principals, along with their agenda, must be questioned. Debbie has obliterated her FB page from view (at least to this reporter) and her sponsors appear to disingenuously engage in bargaining and sophomoric posturing regarding who can freely exercise 1st Amendment prerogatives.

Spoiler Alert:

Due to ‘technical difficulties’ (I should have pushed the RECORD button twice), the audio link promised earlier won’t be happening. It was a pretty dry slog lasting over two hours anyway, and not many readers have an attention span that long. Debbie’s presentation was weak as it was very light on faces, something most readers are drawn to, and because it spent most of its 2-hours on contorted political theory proselytizing the deconstruction of the social order, demonizing patriarchy, and asking the audience to CALL their Congress critters–claiming they liked getting phone calls better than mail–like you’re actually going to get the Congress rep to pickup the phone. 🙂

Post polemics, Debbie was asked what her relationship to the Kurds was, if she was a Kurd, was born in the region, had family there, or was she a U.S. National. She admitted none of the above were true but for the fact she was an American. She’s published a book which is an amalgam of the Kurdish crisis conjoined with one political faction of Kurds which Debbie admitted an affinity for because their political ideology (deconstruction of the social order, a “3rd way”, i.e. neither capitalism nor communism/socialism. and an overwhelming dose of anti-patriarchy rhetoric without even a flimsy theory of government) aligned with hers. One suspects her book and speaking tour addressing a sequence of radical political venues generates some income. Whether this constitutes a conflict of interest with her professed concern over the safety of those Kurdish faces she had on public display is anyone’s guess. Is it possible Debbie is more concerned about being ‘scooped’?…that the emphasis is more on her relationship with her Kurdish comrades than the Kurds themselves? i.e. Is it all about her?

Debbie was then asked about the religious composition of the Kurds. She thought about 75% of them were Muslim (Sunni), with a varying mix of Christians, Hindu, secular, and other faiths the Kurds were (she argued) very tolerant of, affording complete religious freedom in practicing one’s faith. Tensions over regional water resources, however, were another matter.

Finally, Debbie was asked how militarily feasible it was for the U.S. to remain embedded with and militarily supplying the Kurds when the landlocked region they occupy was surrounded by enemy nation states antithetical to Kurdish dreams, hopes, and aspirations…or, indeed, even their survival when Turkey is a U.S. ally, Syria is a Russian ally, and Iran is currently an Iraqi ally. Debbie fecklessly insisted that Erdogan, the Turkish head of state, would never dare to move on the Kurds if the U. s. but only left 1,000 American soldiers in harm’s way. Debbie may be unfamiliar with the fact Erdogan had already done exactly that when he sent Turkish tanks to attack Kurdish Peshmerga outside the city of Mosul, a traditional Kurdish stronghold inside Iraq not so long ago. Only U.S. intervention prevented a bloodbath between our allies while America was fully engaged in a war of annihilation against ISIS. None of the Kurds’ enemies are willing to allow the U.S. military access to the Kurds under current circumstances. Is the U.S. expected to fight its own allies?…one of which has the largest and best equipped military in NATO save only for the U.S. itself? Debbie suggested the Turkish army had been too weakened from a purge after a failed coup attempt against Erdogan to dare challenge the U.S. in pursuing what Erdogan deems Kurdish terrorists the equivalent of ISIS itself. Debbie admitted it was complicated.

One stunning revelation was Debbie’s inability to provide even a faint alibi for Kurdish perfidy. She displayed oil rigs in Kurdish occupied territory during her presentation. She also stated the Kurds had no refineries to distill/process the crude; the Syrians had destroyed all of them. Who were the Kurds selling the crude to, she was asked…to their enemies? It was ‘complicated’ she demurred. She went on to characterize certain accommodations the Kurds had agreed to satisfactory to their enemies. As she continued, the Kurdish cause began to resemble a movement more than a war of independence…something like our own ecoterrorists in principle if not in detail. Moreover, Debbie began to resemble on of the blind men who had his hand on on part of the Kurdish elephant’s anatomy. Debbie, to put it mildly, was in over her head. Or, as she said, “It’s complicated.” Indeed it IS complicated–perhaps too complicated for an American foreign policy in the region that has failed abysmally. If the Kurds have no friends, perhaps America has equally none in the region. ‘Friends’ often make the most dangerous enemies. Few Americans would welcome their son being shipped home in a Kurdish box. The U.S. foreign policy in the region is far too clueless to be making promises/commitments there to anyone, as it has proven repeatedly over the years. As Trump pointed out, there’s plenty of sand to fight over. Turkey was buying crude from ISIS and Saudi Arabia was secretly funding them as they were enemies of Iranian Shia, therefor Saudi Arabia’s ‘friends’. You see, it’s ‘complicated’. Saudi Arabia is more than willing to fight Iran to the last American.

Q: Is it ok to demand payment for pictures?
A: If you are selling photos yes. If the public is taking photos of you or your performance then no. If you are in the public eye than someone of the public may take a photo of you or your work without paying you or asking your permission so long as they aren’t selling said photo. The reason this is, photographers have first amendment rights too, and you are in the public eye. https://artistandbuskerrights.blogspot.com/

By Claire Ballentine–November 3, 2019, 4:00 AM PST Updated on November 3, 2019, 8:42 AM PST

•  Funds that charge nothing may come with unappreciated risks
•  But an asset-management fee war means trend is here to stay

If something sounds too good to be true, it probably is. There’s a dark side to the wave of cost cutting that’s swept through the exchange-traded fund industry over the last 12 months. While every mom and pop in America can now pay nothing to buy an ETF through their favorite broker, and an extra nothing to cover its annual management fee, concern is mounting that there are catches to this bargain that could surprise investors.

Zero-Sum Game

Five ETPs are now available for nothing.
Brokerages have been fairly upfront about compensating for their lost commissions with interest revenue, but managing a fund — even one that tracks an index — isn’t free either. It costs about $250,000 per year to run an ETF, with the exact amount depending on what the fund owns, which service providers it hires, and the issuer’s broader business. But one way or another, whether its legal costs, aggressive up-selling or extra risk-taking, investors could wind up paying. “This isn’t UNICEF, there’s a cost associated with doing things,” said Matt Bartolini, head of SPDR Americas Research at State Street Global Advisors, referring to the well-known children’s charity. “My first question is how are these costs being covered?”

Corner Cutting

The answer? It depends. A fund’s management fee typically covers the cost of licensing or creating an index, admin like record keeping and prospectus mailings, as well as the expenses associated with running a board of directors. Issuers that offer products for free still have these costs, but they have more reason to try to reduce them. One place where efficiencies could be made is in the legal department, which could hurt investors in the event of a lawsuit. Other savings could be made by constructing indexes in-house or licensing lower-cost alternatives, hiring second-tier custodians, or limiting any sales presence or advertising budget. These economies could result in damaging oversights, or increase the likelihood of the fund closing. “I would be concerned about the compliance and legal aspect,” said Sam Huszczo, the founder of SGH Wealth Management, a $170 million investment adviser based in Detroit that uses ETFs. “Those are the two areas where I could see corners being cut.” Salt Financial, which pays investors to buy its fund, tracks an index of stable companies and only swaps out two or three names per quarter, which lowers transaction costs, according to co-founder Alfred Eskandar. In October, the company said it planned to move the ETF to a trust maintained by U.S. Bank to reduce administrative and operational complexity. The change will also save money, although Eskandar said investors will not be exposed to additional risks. He hopes the lack of fee will encourage investors to try the fund, and that they’ll stick around due to its performance.

The Up-Sell

An alternative strategy for issuers with more than one product is to leverage their zero-fee products to generate other business. Fidelity Investments started the first zero-fee mutual funds in August 2018, but they’re only available to investors that have a brokerage account with the firm. Meanwhile, Social Finance Inc., an online lender best known for refinancing student loans, views its no-fee products as a way to develop existing clients. Two of its ETFs cost nothing until at least June 2020, but another fund costs $5.90 for every $1,000 invested, more than the median ETF fee. The thinking was “we’ll provide this for free so you can find out all the other things available in this community,” said Michael Venuto, chief investment officer of Toroso Investments, which helped SoFi start its funds. “It’s about engagement,” he said, adding that selling more expensive products alongside zero-fee ETFs is not nefarious.

Next Step?

A greater risk looms as these funds grow. ETFs habitually lend out a proportion of their holdings to hedge funds and other borrowers for a fee, part of which goes back to investors. While the amount of securities that can be out on loan at any given time is capped by the regulators, issuers of zero-fee funds could be incentivized to lend out a larger portion of their underlying portfolios, and keep a larger percentage of the profits. While no zero-fee ETF currently engages in the practice, Fidelity’s four index funds are eligible for securities lending, according to a company spokesman. But all revenue — minus lending agent and custodial fees — goes back to investors. ETFs need about $50 million to make securities lending worthwhile, according to Toroso’s Venuto, who says it’s low risk. Read more: Zero fees could backfire on asset managers Still, the race to zero shows no sign of letting up. Abolishing fees generates publicity, something that could make the difference between survival and liquidation in a marketplace with more than 2,000 options. More than 70% of U.S. ETF assets are in funds that charge $2 per $1,000 invested or less and 93% of new money has flowed into such products this year, according to data compiled by Bloomberg. Vanguard Group cut its fees again on Oct. 23, this time announcing that it would reduce the cost of 13 London-listed ETFs. Meanwhile, in the U.S., BNY Mellon has filed for a group of broad-indexed ETFs, fueling speculation that these products could augment the growing pool of zero-, or near-zero, fee investments. “If they’re not getting paid by the clients, how are they getting paid?” Dan Egan, managing director of behavioral finance and investing for Betterment, said of zero-fee funds. “People who are happy paying nothing for something are going to get what they pay for.”

The Situation in Rojava: A Conversation with Debbie Bookchin

November 4 @ 3:00 pm – 5:00 pm

The Emergency Committee for Rojava and Black Cottonwood Collective are pleased to present a report by journalist and author Debbie Bookchin, who has recently returned from the autonomous Kurdish-led region known as Rojava. She will talk about why it is critical to defend this feminist, ecological, democratic project from the ongoing onslaught by Turkey and its jihadi allies as well as the Syrian regime, and how ideas of social ecology have influenced the Kurdish freedom movement. This report is part of the speaking tour that ECR envisions as a step towards building a nationwide network to support Rojava and the Kurdish movement at a time when they are in grave danger. Purce Hall, Lec Hall 1 at Evergreen State College, 3:00PM

Debbie Bookchin’s

WEST COAST SPEAKING TOUR:

November 1 – University of Washington, Takoma  November 2 – Labor Temple Meeting Hall, Seattle  November 3 – 115 Legion, Olympia  November 4 – Evergreen State College, Olympia  November 5 – University of Oregon, Eugene  November 6 – Portland State University  November 7 – La Conxa, LA  November 9 – Tamarack Oakland  November 10 – California Institute of Integral Studies, San Francisco November 11 – Cafe Colonial, Sacramento Debbie Bookchin’s WEST COAST SPEAKING TOUR November 1- November 11

​ The Emergency Committee for Rojava and our comrades on the West Coast are pleased to present a report by journalist and author Debbie Bookchin, who has recently returned from the autonomous Kurdish-led region known as Rojava. She will talk about why it is critical to defend this feminist, ecological, democratic project from the ongoing onslaught by Turkey and its jihadi allies as well as the Syrian regime, and how ideas of social ecology have influenced the Kurdish freedom movement. This report is part of the speaking tour that ECR envisions as a step towards building a nationwide network to support Rojava and the Kurdish movement at a time when they are in grave danger. 

​ November 1 – University of Washington, Tacoma  November 2 – Labor Temple Meeting Hall, Seattle  November 3 – 115 Legion, Olympia  November 4 – Evergreen State College, Olympia  November 5 – University of Oregon, Eugene  November 6 – Portland State University  November 7 – La Conxa, LA  November 9 – Tamarack Oakland  November 10 – California Institute of Integral Studies, San Francisco November 11 – Cafe Colonial, Sacramento ​ The tour is happening with the collaboration of Demand Utopia Seattle, Rojava & Kurdish Solidarity Seattle, Rising Tide Seattle, Labor Temple Association, Evergreen State College, Tamarack Oakland, Sacramento DSA, La Conxa & O.V.A.S, Sunday Dinner LA, DSA-LSC LA, California Institute of Integral Studies, 115 Legion, Olympia Assembly, The Black Cottonwood Collective, Eugene Rojava & Kurdish Solidarity, Cafe Colonial Sacramento, Eugene Rojava & Kurdish Solidarity, Rojava Solidarity Portland, Demand Utopia Portland, Symbiosis Portland, Middle Eastern Studies Dep-t at Portland State University, Politics, Philosophy and Public Affairs, Social and Historical Studies and The Labor Solidarity Project at University of Washington, Tacoma Campus.